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Title IX Update: DoE Releases Significant Proposed Changes

November 16, 2018

By Paul W. Apicella

This morning the Department of Education released a revised draft of proposed changes to regulations governing the obligations of higher education institutions under Title IX.  This recent draft, which includes some changes from a version that was leaked in September 2018, sets forth a host of significant shifts in the approach that colleges and universities will be required to adopt in response to allegations of sexual or gender-based harassment and misconduct.

Significant proposed changes include:

  • Changing to an “actual notice” standard for purposes of triggering institutional obligations under Title IX;
  • Narrowing of the definition of “sexual harassment”;
  • Eliminating the requirement that institution’s address allegations of misconduct that occurred off-campus and outside the context of an “educational program or activity”;
  • Mandating that an institution need only respond to misconduct alleged to have occurred within the United States;
  • Stating that institutional response efforts will be examined under a “deliberate indifference” standard (as opposed to a “reasonableness” standard);
  • Establishing a “safe harbor” from potential liability for institutions that follow the regulations’ prescribed procedures in responding to allegations of sexual misconduct;
  • Requiring that institutions initiate formal investigations and grievance procedures only in response to “formal complaints” (in writing, signed by the Complainant);
  • Specifying that interim and/or supportive measures instituted in response to an allegation of sexual misconduct must be non-punitive, time-limited, narrowly tailored, and not unreasonably burdensome to the accused parties;
  • Increasing the standard of notice that must be provided to individuals accused of sexual misconduct;
  • Mandating that parties be permitted the opportunity to cross-examine each other—through an advisor of their choosing—during any conduct hearings;
  • Eliminating the option of using a “single investigator” model to adjudicate allegations of sexual misconduct. All institutions must now provide for the use of live hearings to establish an individual’s responsibility for sexual misconduct; and
  • Expanding the ability to utilize informal resolution procedures in response to allegations of sexual misconduct, including reports of rape or sexual assault.

There will be a “Notice and Comment” period, during which the Department of Education will review input and feedback from the public regarding the proposed regulations. The Notice and Comment period will end 60 days after the regulations are published in the Federal Register.

Colleges and University administrators should take the time to review the proposed regulations and promptly assess the impact on their own institutional policies and procedures.  Institutions should also strongly consider voicing any concerns or approval during the Notice and Comment period.

For more information about the proposed guidelines, please contact Paul Apicella or another member of Montgomery McCracken’s Higher Education practice group.

An informational webinar regarding the practical implications of the proposed regulations will be held on Tuesday, November 27, 2018 at 12:00 p.m. EST. For more information and to register, please contact events@mmwr.com.